Members of the U.S. military services face challenges when they are called to active duty. The USERRA and FMLA give our uniformed service members, and their families, job protections to make it easier to serve and return from service.
The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) protects past and current uniformed service members from unfair employment actions by their civilian employers because of their military service.
USERRA prohibits discrimination on the basis of a past, present, or future service obligation in cases of:
- Initial employment
- Retention in employment
- Any benefit of employment
USERRA also prohibits an employer from retaliating against an individual for exercising or enforcing rights under USERRA or for assisting in an USERRA investigation.
An employer must re-employ a service member after a period of active duty service if:
- The service member was required to be absent from a civilian job on account of service in the uniformed services;
- The service member gave advance notice to the employer that he or she was leaving the job for service in the uniformed services (unless advance notice was not possible due to military necessity or was impossible or unreasonable);
- The cumulative period of military service with that employer did not exceed five years;
- The service member was not released from service under dishonorable or punitive conditions; and
- The service member timely reported back to the civilian job or submitted an application for reemployment (with some exceptions).
The uniformed service members covered by USERRA include:
- Guard and Reserve military personnel
- Active components of the Armed Forces
- The National Disaster Medical System
- The Commissioned Corps of the Public Health Service
The employers covered by USERRA include:
- Private employers in the U.S.
- Public and government employers in the U.S.
- Foreign employers conducting business in the U.S.
- U.S. companies operating in foreign countries unless compliance would violate the law of the foreign country where the workplace is located
If you believe your USERRA rights have been violated, you can file a formal complaint with the U.S. Department of Labor, Veterans Employment & Training Service (“DOL-VETS”). From there, DOL-VETS will investigate your complaint and attempt to resolve it. If DOL-VETS resolution efforts are unsuccessful, you can continue to pursue your complaint under one of two paths:
- For complaints against a federal executive agency:
- You may request that the U.S. Office of Special Counsel pursue your matter on your behalf.
- If the request is unsuccessful, then you may file an action with the Merit Systems Protection Board (“MSPB”).
- For complaints against a state, local, or private employer:
- You may request that the U.S. Department of Justice pursue the claim on your behalf;
- If the request is unsuccessful, then you may file an action in court.
If you are considering filing a USERRA action, you should contact us for an initial consultation to discuss your matter. Our attorneys will provide you with an analysis of your particular situation and counsel you on the pros and cons of your options. We are committed to ensuring that your USERRA rights are protected.